Beware Guardianship

On Wednesday, the General Accounting Office of the US released a report that concluded what surely everyone involved in the guardianship arena already knows: There is too much that we don’t know about the scope of guardian abuse of older adults.

“The extent of elder abuse by guardians nationally is unknown due to limited data on key factors related to elder abuse by a guardian, such as the numbers of guardians serving older adults, older adults in guardianships, and cases of elder abuse by a guardian,” said the Nov. 30 report by the U.S. Government Accountability Office (GAO).

Much of the abuse takes the form of financial exploitation of the “ward,” or person judged to be unable to take care of his or her own affairs and assigned a guardian by the court, the GAO said.

There is no doubt that rampant abuse will come to light if data is collected and guardians are monitored.

— Jaye L. Martin, Legal Services for the Elderly in Maine

The agency examined eight cases in which guardians stole from and, at times, neglected the individuals they were appointed to look after. Two examples:

One Virginia guardian, a family member, took $11,645 from her 83-year-old aunt to buy a pickup truck for a friend and spent $360 of her aunt’s money on sunglasses. She pleaded guilty in 2012 to intent to defraud, was sentenced to 12 months in prison and ordered to pay $32,000 in restitution, according to the report.

In a Texas case, a professional guardian was appointed by the court to manage the affairs of more than 50 people statewide — including “at least six older adults in two facilities 400 miles from the guardian’s home and place of business.” The wards in the far-away facilities went for months without contact from their guardian, who failed to provide them with shoes and clothes, was late in paying the facilities and withheld money from the older adults’ personal stipends. The guardian case was required to pay an administrative penalty of more than $25,000 and prohibited from renewing her guardianship certification. (There was no mention in the report of criminal prosecution.)

The report uses the term “guardian” to refer to persons appointed by the court to manage the personal and/or financial affairs of another, often an older adult. In some states, those appointed to deal with an estate are called conservators, and those appointed for the care of the person are called guardians.

Some Gains Seen

But improvements are being made in some states, the GAO said.

For example, Minnesota has created a Conservator Account Auditing Program (CAAP) to audit reports that conservators, or guardians of the estate, are required to file with the court. The system is considered a model for other states and has been offered to them free of charge.

At the Wednesday hearing on the GAO report, Cate Boyko, manager of the Minnesota CAAP, testified that the program has led to discoveries of clear exploitation.

In one case, an older man living in a nursing home with a traumatic brain injury had expenses for nail salons, a women’s hair salon and women’s clothing stores. In another, a conservator bought a Ford F150 truck with “high-end accessories” for a vulnerable, nursing home-bound person with no driver’s license.

“The amount of money lost through exploitation of elders is staggering and growing,” Boyko told the committee. “Sharing our best practices is the only way we can all become better at what we are trying to accomplish: protecting those that are vulnerable.”

Other Efforts Growing

The GAO’s report said other states, too, are making efforts to track abuse.

Washington state’s Certified Professional Guardianship Board collects complaint data on professional guardians and publishes those in an annual report. (However, guardianship experts believe that the vast majority of guardians are family members, not professionals.)

On the federal level, the department of Health and Human Services’ Administration on Aging is due to roll out a new system to track abuse in early 2017. The National Adult Maltreatment Reporting System will collect complaints that come in through states’ Adult Protective Services agencies “that could help identify cases of elder abuse where a guardian was involved,” the report said.

Much More Change Needed

Among the stubborn problems that remain, the GAO said: ensuring that only those people in need of guardianship are appointed a guardian.

Guardianship is, by definition, a system designed to care for people who don’t have the capacity to care for themselves. Therefore, guardians wield great power, often including sole control over where their ward will live, how their property is dealt with, what health care they will receive and even whom they may see.

Many cases of abuse have involved people who may have needed some help but did not want or need to have their rights usurped by the court.

Nobody Watching

Another persistent theme raised by guardianship experts, the GAO report said, was lack of oversight of guardians.

“There is no doubt that rampant abuse will come to light if data is collected and guardians are monitored,” said Jaye L. Martin, executive director of Legal Services for the Elderly in Maine, in her Senate hearing testimony.

In one heartbreaking case, a woman in her 80s came to Maine to visit her daughter. The older woman had “a very valuable out-of-state property and extensive assets,” Martin said. The daughter kept her in unsafe living conditions against her will while trying to coerce her to sign a power-of-attorney.

The mother refused. Eventually, after the mother escaped and flagged down a passing motorist, she was briefly hospitalized — at which point the daughter filed for guardianship and put her mother in a nursing home.

She desperately wanted to go home.

“There was not one single document filed with the probate court [which handles guardianships] after the guardianship order was issued in this case,” Martin said. “It is far too easy to imagine what would have come to light if this guardian’s actions had been monitored.”